REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

CONSTITUTION AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. 4 OF 2019

IN THE MATTER OF ARTICLES 22(1) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND

FREEDOM UNDER ARTICLES 1 (1) (B), 1 (4)(B), 2(1), 3(1), 10, 19, 20, 21 (1), 22, 23, 27, 28, 40, 47, 232(1) (D) (E) AND 258 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF BREACH OF THE RIGHT TO FAIR ADMINISTRATIVE ACTION

AND

IN THE MATTER OF NATIONAL GOVERNMENT CO-ORDINATION ACT, 2013,

AND

IN THE MATTER OF COUNTY GOVERNMENTS0   ACT, 2012

BETWEEN

ISAAC MUGO.................................................................................................................................1^ST PETITIONER

BERNARD NYAGA.......................................................................................................................2^ND PETITIONER

EUSTACE MUTURI......................................................................................................................3^RD PETITIONER

GEOFFREY K. WAMUGWETWA...............................................................................................4^TH PETITIONER

JAPHET MICHENI NJERU...........................................................................................................5^TH PETITIONER

JASPHER M. NJERU.....................................................................................................................6^TH PETITIONER

SILAS MUTEGI...............................................................................................................................7^TH PETITIONER

SABASTIAN N. NJOKA.................................................................................................................8^TH PETITIONER

JOSEPH MBUBA MIRIBA.............................................................................................................9^TH PETITIONER

JUSTUS N. M'NGITUNG'A..........................................................................................................10^TH PETITIONER

NATHAN KEA IBURIA.................................................................................................................11^TH PETITIONER

ERASTUS K. NKUNE....................................................................................................................12^TH PETITIONER

SAMUEL MUTEGI KIUNGO........................................................................................................13^TH PETITIONER

JOSEPH MBUBA.............................................................................................................................14^TH PETITIONER

VERSUS

DR. FRED OKENGO MATIANG'I, THE CABINET SECRETARY, MINISTRY OF INTERIOR AND                  

COORDINATION OF NATIONAL GOVERNMENT...................................................................1^ST RESPONDENT

THE HONOURABLE ATTORNEY GENERAL..........................................................................2^ND RESPONDENT

AND

INDEPENDENT ELECTORAL AND BOUNDARY COMMISSION OF KENYA......1^ST INTERESTED PARTY

LUANO MUGAMBI KIANIA............................................................................................2^ND INTERESTED PARTY

PATRICK NYAGA...............................................................................................................3^RD INTERESTED PARTY

LEXIOUS NJAGI MUNENE..............................................................................................4^TH INTERESTED PARTY

KAMWARA KIJIU..............................................................................................................5^TH INTERESTED PARTY

MWIKAMBA KARANJA...................................................................................................6^TH INTERESTED PARTY

ANDREW NYAGA...............................................................................................................7^TH INTERESTED PARTY

GILBERT MAINGI..............................................................................................................8^TH INTERESTED PARTY

EVERINO K. NGUMOKO...................................................................................................9^TH INTERESTED PARTY

CHARLES KIRIMO...........................................................................................................10^TH INTERESTED PARTY

MICHENI KATHENYA......................................................................................................11^TH INTERESTED PARTY

MUGO M'ITHARA...............................................................................................................12^TH INTERESTED PARTY

NJUKI KAMUMO................................................................................................................13^TH INTERESTED PARTY

GILBERT KAMWARA.........................................................................................................14^TH INTERESTED PARTY

BASILINA CIANTHWA.........................................................................................................15^TH INTERESTED PARTY

EUSTUS MUNENE................................................................................................................16^TH INTERESTED PARTY

EDIEL MWITI MICHAEL...................................................................................................17^TH INTERESTED PARTY

AUSTIN M NGAINE.............................................................................................................18^TH INTERESTED PARTY

MARK NJUE............................................................................................................................19^TH INTERESTED PARY

R U L I NG

1.  Before this court is a Notice of Motion dated 3^rd October 2019 brought by the 1^st Interested Party (Independent Electoral and Boundaries Commission – IEBC) the applicant herein who has invoked Rule 25 of Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedures Rules 2013, Sections 1, 1A, 3A and 95 of Civil Procedure Act  and Order 50  Rules 5&6 Civil Procedure Rules, in seeking the following reliefs/orders.

a. Spent

b. That this honourable court be pleased to set aside and/or vary its orders  issued on 25^th July 2019 and re-admit into the court’s record the 1^st Interested Party’s Replying Affidavit filed on 24^th July 2019.

c. That upon grant of prayer (b) above,  the 1^st Interested Party’s Replying Affidavit herein marked as annexure ‘A’ to the Supporting Affidavit be deemed to be part of the official record duly and regularly filed and served upon the parties herein.

d. Costs be in cause.

2. The applicant has listed the following grounds for the above prayers sought namely:-

i. That the petitioners instituted a suit against the Respondent and the 1^st Interested Party vide petition dated 5^th March 2019 together with a Notice of Motion application dated 4^th March 2019 claiming inter-alia that the people of Chuka Sub-tribe were never engaged in public participation by the Respondent in respect of creations of new administrative units being Igambang’ombe Sub-County

ii. That the Interested Party/Applicant subsequently filed its grounds of opposition dated 6^th May 2019 against the petition.

iii. That the 24^th July 2019 this court ordered that the applicant’s Replying Affidavit sworn by Christine Otieno Owiye on 23^rd July 2019 and filed on 24^th July 2019 be expunged from the record  on account of being filed  out of stipulated time as directed by this court.

iv. That the applicant wishes to rely on that Replying Affidavit

v. That the omission by the applicant’s counsel to seek leave to file and serve the Replying Affidavit out of time was an inadvertent mistake which ought not to be visited upon an innocent party

vi. That it would be prejudicial if the application is allowed as all parties have had an opportunity to peruse the Replying Affidavit.

vii. That the Replying Affidavit raises important legal and constitutional questions that would help this court in determination of this petition.

viii. That it is imperative that this application is heard immediately.

3. This application is further supported by the affidavit of Kelvin Mbogo sworn on 3^rd October 2019 where he has mainly reiterated the above grounds.  He avers that the delay in filing the Replying Affidavit on time was occasioned by circumstances beyond his control.  He has however not stated what those circumstances were.

4. The applicant submits that that its advocate inadvertently forgot to seek leave on 24^th July 2019 when the matter came up in court.  It contends that it stands to suffer loss noting that serious issues have been raised in both the substantive application and the main petition. 

5. The applicant further contends that Article 159 (2) (d) promotes administration of justice without undue regard to technicalities.  According to the applicant, failure to seek leave is a technicality that can be cured.

6. The applicant has relied on the case of Joshua Mutie and Another –vs- County Government of  Machakos and Another [2018] eKLR where the court stated that it considered an explanation delay in filing due to the bureaucracy  of the defendant’s office and  due to lack of prejudice to be suffered  by defendant in granting the applicant leave to file defence out of time.  The applicant has further cited the decision in the case of Chairman, Secretary and Treasurer School Management Committee of Sirin Salim School –vs- Francis Bahati Dwari & 2 other [2014] eKLR to support its contention.  In that case, the court stated that since the Rules allow for extension of time, striking out a pleading  should be an extreme measure in the clearest of cases.  The Applicant contends that is in the interest of justice  to admit the Replying Affidavit.

7. It further submits that the parties are interested in speedy  hearing and determination of this petition and contends that admitting the Replying Affidavit  out of time will aid that goal as it will not prejudice any party.

8. The petitioner/Respondents have opposed this application vide a lengthy affidavit sworn by Isaac Mugo on 11^th November 2019,  They have given a summary of the proceeding and the order/directions  given at various times and in particular the orders/directions given by this court on 4^th June 2019 giving the Interested  party 21 days to file response to the application dated 4^th March 2019.  They fault the applicant for failing to comply despite strict timelines given by this court.

9. The Respondents further terms this application as vexatious, frivolous and an abuse of court because the Replying Affidavit in issue was filed out of time without reasons for the delay given. They have faulted the applicant for laxity contending that non- compliance of court orders is not a mere technicality.  They rely on the decision of Nicholas Kiptoo Arap Korir Salat –vs- IEBC where they aver the supreme established principles of extension of time.  In their view the applicant has not met the threshold for the court to exercise discretion in its favour.  They contend that rules of procedure ought to apply strictly.

10. The Respondents further  submit that Section 95 of the Civil Procedure Act and Order 50 Rule 6 do not apply here as timelines for compliance were fixed as per the request  of the applicant itself  and by consent. They contend that no reasons  have been advanced for extension of time and that such extension would delay this matter.

11. The Respondent further aver that the application is incompetent and res judicata as this court has already made a determination on whether or not to admit the affidavit  and having rejected the affidavit, the applicant sought leave to appeal but has not pursued that course.  They have insisted that the interests of the parties must be balanced for the interest of justice.

12. This court has considered this application and the response made by the Petitioners/Respondents.  The other parties in this petition for the record did not oppose this application.  That notwithstanding this court will determine this application on its merit.

13. The crux of matter in this application is an application dated 4^th March 2019 which were seeking for interim orders.  The said application came up for inter partes on 7^th May 2019 where the Interested Party/Applicant sought for time to file a response.  This court fixed the matter for inter parties hearing on 4^th June 2019 and the Interested Parties/Applicant was given 14 days to file its Replying Affidavit as requested.  On 4^th June 2019, the Interested Party/Applicant counsel sought for more time (21days) to file a response to the said application as they had not complied with this court’s order to file response in 14 days from 7^th May 2019.  This court indulged the applicant (Interested Party) and gave it 21 days more further to respond.  The application was then fixed for hearing on 2^nd July 2019 when the2nd to nineteenth  Interested Parties bought an application dated 29^th June 2019 for joinder.  This court then entertained that application and delivered its ruling on 9^th July 2019.   On 9^th July 2019 this court delivered its ruling and allowed the 19 parties to be enjoined as 2^nd to 19^th Interested Parties.  The 1^st Interested Parties /Applicant then told this court that it had filed grounds of opposition and only sought 7 days to file authorities they would be relying on.  This court expressly put all the parties on notice because of the previous unnecessary delays that had been caused by the 1^st and 2^nd Respondents and 1^st Interested Party.  This court then gave them 7 days strictly to file their responses and whatever authorities they wished to rely and fixed the matter for mention on 24^th July 2019 for further directions.  On 24^th July 2019 some other parties  applied to be enjoined vide Notice of Motion dated 23^rd July 2019 and this court directed that the same application be canvassed vide written submissions.  This court was also alerted that the 1^st Interested Party/applicant herein had filed its response late and had failed to seek leave of this court.  This court upon hearing representation from both parties found that the Replying Affidavit filed on 24^th July 2019 had been irregularly filed  out of time without leave and expunged the same from the record.  The applicant then  sought leave to appeal  which was granted by this court.

14. The Applicant is now seeking to have the same orders set aside or varied but it has not stated whether it pursued its appeal and if so the status of the same.  The applicant has also failed to give reasons for the delay in filing its Replying Affidavit despite being given adequate time to file response.  When it asked this court orally to extend time on 24^th July 2019 it also did not give reasons to explain the delay so that this court could decide whether or not to exercise its discretion and grant extension.  The Applicant has also made a fundamental error by failing to seek leave to be allowed to file its Replying Affidavit out of time under Order 50(6) of the Civil Procedure Rules, the applicant has therefore failed to properly invoke the discretion of this court.  In the cited Supreme Court’s decision  in Nicholas Kiptoo Arap Korir Salat –vs- IEBC [20014] eKLR the court expunged an appeal that was irregularly filed  and made the following observations;

“What we hear the applicant telling the Court is that he is acknowledging having filed a ‘document’ he calls ‘an appeal’ out of time without leave of the Court. Pursuant to rule 33(1) of the Court’s Rules, it is mandatory that an appeal can only be filed within 30 days of filing the notice of appeal. Under rule 53 of the Court’s Rules, this Court can indeed extend time. However, it cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires.

By filing an appeal out of time before seeking extension of time, and    subsequently seeking the Court to extend time and recognize such      ‘an    appeal’, is tantamount to moving the Court to remedy an illegality.    This, the Court cannot do.

To file an appeal out of time and seek the Court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the Court."

In this instance the application is being presumptive that with the setting aside of the order made by this court on 24^th July 2019 this court would grant leave  automatically  which is a misconception.  An extension of time is not automatic or a matter of right.  It is an equitable remedy and a party seeking for such a relief must lay sufficient basis for the same.  In this application the applicant has neither sought leave nor lay any basis.  He has just stated that “circumstances were beyond his control” which I find to be a lame excuse.  This court cannot be persuaded by such lame excuses by parties who fail to adhere to time lines set to facilitate speedy trial and determination of matters bought before court particularly when these circumstances are not disclosed.  The applicant has not raised anything new from what it raised on 24^th July 2019.  This court rendered itself on the issue of late filing of the Replying Affidavit without leave.

In the end this court finds no merit in the application dated 3^rd October 2019.  The same is dismissed with costs.

Dated, signed and delivered at Chuka this 27^th day of May 2020.

R.K. LIMO

JUDGE

27/5/2020

Ruling signed dated and delivered via zoom in presence of Mbogo for Applicant, Kariuki for 2^nd to 19^th Interested Parties and Otieno for Petitioner.

R.K. LIMO

JUDGE

27/5/2020